Brief Bank # B-967 (Re: F 9.54d [Aggravated Kidnapping: Requirement That Movement Not Be Incidental To The Intended Crime (PC 209(b)(2))].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
No. H000000
Plaintiff and Respondent,
(SANTA CLARA CO.
vs. SUPERIOR COURT
NO. CC000000)
JOHN DOE,
Defendant and Appellant.
__________________________________________
APPELLANT’S OPENING BRIEF
________________________
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA,
THE HONORABLE RICHARD J. LOFTUS, JR., JUDGE PRESIDING
_______________________________
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorneys for Appellant,
JOHN DOE
I.
UNDER THE FEDERAL DUE PROCESS CLAUSE, THE KIDNAPPING FOR THE PURPOSE OF RAPE CONVICTION MUST BE REVERSED SINCE IT IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
Pursuant to Penal Code section 209, subd. (b)(2), a conviction for kidnapping for the purpose of rape cannot be sustained unless the evidence establishes that “the movement of the victim is beyond that merely incidental to the commission” of the attempted rape. As will be demonstrated below, the People failed to prove this element of the offense.
The evidence established that appellant accosted Ms. L on the sidewalk. (RT 83, ACT 43.) He then forcibly asported her approximately 45 feet down an embankment. (RT 101-102, ACT 44.) The embankment was “steep” and had a grade of about 15 percent. (RT 120, 151.) On this record, Ms. L’s asportation was incidental to appellant’s goal of raping her.
Under the federal Constitution, a judgment must be reversed when it is not supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In measuring the sufficiency of the evidence, the question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Ibid., emphasis in original.) Here, the more than incidental movement element of section 209 is not satisfied.
As was noted above, section 209, subd. (b)(2) requires movement which is more than “incidental” to the planned rape. In reviewing the proof regarding this element, an appellate court must examine the “‘scope and nature’” of the movement. (People v. Rayford (1994) 9 Cal.4th 1, 12.) “This includes the actual distance a victim is moved.” (Ibid.)
Here, the movement of Ms. L was clearly incidental to the commission of the attempted rape. When the event began, the parties were on the sidewalk. Obviously, a sex act could not be performed on the sidewalk since it was too hard to be comfortable. Thus, Ms. L was moved a short distance (forty five feet) to a more comfortable spot. This movement was therefore incidental to the commission of the rape.
People v. Stanworth (1974) 11 Cal.3d 588 establishes this conclusion. There, the following facts were adduced in a prosecution for kidnapping for the purpose of robbery.
The victim, Mrs. D., was walking home from a shopping center in the early evening. Defendant approached her on the road, grabbed her from behind and while holding an ice pick at her throat, threatened to have sexual intercourse with her. He dragged her onto an open field approximately 25 feet from the road, bound her hands with wire and forcibly raped her. Before fleeing, defendant took approximately $15 from the victim’s purse.” (Stanworth, supra, 11 Cal.3d at p. 597, fn. omitted.)
On this record, the Supreme Court concluded that the conviction for aggravated kidnapping was insupportable. “[T]he asportation of the victim was for a distance slightly less [than thirty feet] and was accomplished for the specific purpose of raping and robbing her. Thus the movement of the victim cannot be regarded as substantial and was merely incidental to the commission of those crimes.” (Stanworth, supra, 11 Cal.3d at p. 598.)
The instant case is indistinguishable from Stanworth. Here, as in Stanworth, the victim was moved a modest distance off the road for the purpose of facilitating the rape. Stanworth requires reversal.
Appellant anticipates that the People will seek to distinguish Stanworth on the grounds that appellant asported Ms. L for forty five feet whereas the asportation in Stanworth was for only twenty five feet. On the instant record, the additional distance is not material.
The evidence established that the embankment was “steep.” (RT 151.) Thus, appellant moved Ms. L a moderate distance down the embankment in order to find a flatter location to perform the rape. Viewed from this perspective, the degree of movement was no greater than that which was incidental to the attempted rape.
People v. Daniels (1969) 71 Cal.2d 1119 establishes the merit of this analysis. There, the defendants were charged with several kidnappings for the purpose of robbery. In count 4, the defendants encountered the victim at the door of her apartment. She was asported a distance of thirty feet to her bedroom where she was robbed and raped. On these facts, the Supreme Court concluded that the asportation was incidental to the planned crimes.
“[D]efendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were ‘incidental to’ the robberies and rapes . . . .” (Daniels, supra, 71 Cal.2d at pp. 1130-1131.)
Here, an analytically identical fact pattern exists. It was impractical to rape Ms. L on the sidewalk. Thus, appellant moved her down the embankment. Since the thirty foot movement in Daniels from the front door to the bedroom was merely incidental to the planned rape, the same result is appropriate here.
Finally, appellant notes that there are at least two Court of Appeal cases which appear to equate “incidental” with “necessary.” (People v. Shadden (2001) 93 Cal.App.4th 164, 168-169; movement of nine feet was not incidental to attempted rape since rape does not require movement; People v. Salazar (1995) 33 Cal.App.4th 341, 348, fn. 8; movement from motel hallway into room was not incidental since rape “does not necessarily require movement to complete the crime.”) Simply stated, these cases are inconsistent with the Supreme Court precedents found in Stanworth and Daniels.
People v. Hoard (2002) 103 Cal.App.4th 599 so holds. In discussing Shadden and Salazar, the court observed:
“In our view, incidental and necessary do not mean the same thing. The courts in Shadden and Salazar seem to have committed the error of ipse dixit, as when Humpty Dumpty told Alice, ‘”When I use a word” . . . “it means just what I choose it to mean – neither more nor less.”’ But we agree with Alice a word should mean what it says: ‘This prosaic notion is based on our abiding conviction that communication suffers when language says what it does not mean.’” (Hoard, supra, 103 Cal.App.4th at pp. 606-607, fns. omitted.)
In short, “incidental” movement is that movement which served “only to facilitate the [planned rape] with no other apparent purpose.” (Hoard, supra, 103 Cal.App.4th at p. 607, fn. omitted.) Here, there is no doubt that the moderate movement accomplished by appellant was subordinate to his plan to rape Ms. L. The kidnapping for purpose of rape conviction must be reversed.
II.
APPELLANT WAS DEPRIVED OF DUE PROCESS UNDER THE FEDERAL CONSTITUTION SINCE THE JURY WAS NOT ADEQUATELY INSTRUCTED ON THE ELEMENT OF AGGRAVATED KIDNAPPING THAT THE MOVEMENT OF THE VICTIM MUST BE BEYOND THAT WHICH IS MERELY INCIDENTAL TO THE COMMISSION OF THE ATTEMPTED RAPE.
As has been discussed above, an element of kidnapping for the purpose of rape is that the “movement of the victim” must be “beyond that merely incidental to the commission” of the attempted rape. (Penal Code section 209, subd. (b)(2).) As will be demonstrated below, the trial court erred by failing to give an adequate instruction regarding this element of the offense.
Pursuant to CALJIC No. 9.54, the court instructed the jury as follows:
“The defendant is accused in count one of having committed the crime of kidnapping to commit rape, a violation of section 209, subdivision (b)(1) of the Penal Code. Every person who with the specific intent to commit rape kidnaps any individual is guilty of the crime of kidnapping to commit rape.
“In violation of Penal Code section 209, subdivision (b)(1), the specific intent to commit rape must be present when the kidnapping commences. Kidnapping is the unlawful movement by physical force of a person without that person’s consent for a substantial distance where the movement is not merely incidental to the commission of the rape and where the movement substantially increases the risk of harm to the person moved over and above that necessarily present in the crime of rape.
“In this crime, namely kidnapping to commit rape, the risk of harm requirement refers to the risk of either physical or mental harm.
“Kidnapping is also the unlawful compulsion of that person without that person’s consult [sic] and because of reasonable apprehension of harm or substantial distance where such movement is not merely incidental to the commission of the rape and where the movement substantially increases the risk of harm to the person moved over and above that necessarily present in the crime of rape itself. Brief movements to facilitate the crime of rape are incidental to the – or are incidental to the commission of the rape. On the other hand, movement to facilitate the rape that are for a substantial distance rather than brief are not incidental to the commission of the rape.
“In order to prove this crime, each of the following elements must be proved: One, a person was moved by the use of physical force or compelled to move because of a reasonable apprehension of harm; two, the movement of that person was caused with the specific intent to commit rape and the person causing the movement had the required specific intent when the movement commenced; three, the movement of the person was without that person’s consent; four, the movement of that – of the person was for a substantial distance, that is, a distance more than slight, brief or trivial; and five, the movement substantially increased the risk of harm to the person moved over and above that necessarily present in the crime of rape itself.” (RT 222-224, emphasis added.)
As is readily apparent, there is a fundamental inconsistency between the introductory language of No. 9.54 and its specification of the elements of the offense. The introductory language correctly states that aggravated kidnapping is not committed where the “movement is not merely incidental to the commission of the rape . . . .” (RT 223.) However, in that portion of the instruction which specifies the elements of the crime, no mention is made that movement must be beyond that which is incidental to the commission of the rape. (RT 223-224.) Rather, the only specification in the elements section of the instruction is that “the movement of that – of the person was for a substantial distance, that is, a distance more than slight, brief or trivial; . . . .” (RT 224, see also written instruction at CT 178-179.)
On this record, it is uncertain whether the jury was made aware that more than “incidental” movement was an element of the offense. Since the instruction was at best inconsistent, error must be found under controlling Supreme Court precedent.
In Francis v. Franklin (1985) 471 U.S. 307, the jury was given conflicting instructions on the specific intent element of a murder charge. On the one hand, the jury was told that it could presume that the defendant had the intent to act as he did. On the other hand, the jury was instructed that the government had the burden of proof regarding the elements of the offense. In finding reversible error, the Supreme Court held:
“Even if a reasonable juror could have understood the prohibition of presuming ‘criminal intention’ as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Id., at p. 322, fn. omitted.)
Given the reasoning in Franklin, it is manifest that the jury was given a fatally inconsistent instruction. On this record, there is simply no way of knowing whether the jury adjudicated the question of whether the movement of the victim was more than incidental to the commission of the attempted rape. Thus, error must be found. (Francis, supra, 471 U.S. 307, 322; see also United States v. Stein (9th Cir. 1994) 37 F.3d 1407, 1410; “[w]here two instructions conflict, a reviewing court cannot presume that the jury followed the correct one. [Citation.],” overruled on another point in Roy v. Gomez (9th Cir. 1996) 81 F.3d 863, 866-867.)
As always, the remaining question is whether the error was prejudicial. Insofar as the error involves the failure to instruct on an element of the offense, it is the government’s burden to establish that the error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 15.) In applying this test, the appropriate inquiry is to focus on the effect of the error on the instant jury.
“[T]he question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, emphasis in original.)
As the foregoing quotation reveals, the mere existence of strong government evidence does not ip so facto lead to a conclusion of harmless error. To the contrary, if a significant constitutional error has occurred at trial, reversal is compelled. This is so since it is the government’s burden to show that the guilty verdict “was surely unattributable to the error.” (Sullivan, supra, 508 U.S. at p. 279; accord, People v. Quartermain (1997) 16 Cal.4th 600, 621.)
In this case, there is no doubt that the error is prejudicial. This is so for two reasons.
First, as was discussed above (pp. 6-10, supra), the evidence concerning the more than incidental movement element was far from compelling. Thus, it is quite possible that a properly instructed jury would have found that the government had not shouldered its burden of proof on this element.
Second, the entire defense case rested on the theory that appellant was not guilty of aggravated kidnapping and should be convicted of the lesser included offense of either false imprisonment or simple kidnapping. (RT 197-201.) Of course, the most likely result for the jury to reach was a finding of simple kidnapping based on the weak evidence regarding the more than incidental movement element. To the extent that the error in the instruction deflected the jury’s attention from a consideration of this key factual question, the government cannot show that the guilty verdict on aggravated kidnapping “was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279.)
Finally, it bears emphasis that reversal is still compelled even if this court should conclude that the evidence on the more than incidental movement element was relatively strong. The reasoning in Chapman v. California (1967) 386 U.S. 18 proves this proposition.
Although the facts of the case were not recited by the Supreme Court in Chapman, they can be found in the antecedent opinion of the California Supreme Court. (People v. Teale (1965) 63 Cal.2d 178.) At 2 a.m. on the morning of October 18, 1962, Ms. Chapman, Mr. Teale and Mr. Adcox were seen outside the bar where Mr. Adcox was employed as a bartender. Later that morning, Mr. Adcox’ body was found in a remote area. He had been shot in the head three times. Mr. Adcox was killed with .22 caliber bullets and Ms. Chapman had purchased a .22 caliber weapon six days earlier. In close vicinity to the body, the police found a check which had been signed by Ms. Chapman.
The most important evidence against the defendants was of a forensic nature. According to the government’s expert, blood found in the defendants’ car was of Mr. Adcox’ type. In addition, hairs matching those of Mr. Adcox were found in the car along with fibers from his shoes.
If this evidence was not enough, the government also presented an informant who testified to Mr. Teale’s statements. Essentially, Mr. Teale told the informant that he and Ms. Chapman had robbed and killed Mr. Adcox.
For her part, Ms. Chapman gave a statement to the police. In so doing, she lied and claimed that she was in San Francisco at the time of the killing. The falsity of this account was proved by the fact that Ms. Chapman had registered at a Woodland motel shortly after Mr. Adcox’ demise.
At trial, neither defendant testified. In manifest violation of the federal Constitution, the prosecutor repeatedly argued to the jury that the silence of the defendants could be used against them. On this record, the Supreme Court found reversible error:
“[A]bsent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to petitioners’ convictions.” (Chapman, supra, 386 U.S. at p. 26.)
Without doubt, the foregoing recitation of the Chapman facts and holding leads to an inescapable conclusion: The Supreme Court intended that it would be very difficult for the government to show that a federal constitutional error was harmless. As is readily apparent, the government had a very strong case in Chapman including a confession, evidence of the opportunity to commit the crime, highly incriminating forensic evidence and consciousness of guilt evidence. Nonetheless, the strength of this evidence was not sufficient to avoid reversal.
It cannot be seriously contended that the People’s evidence in this case is any stronger than that in Chapman. Thus, reversible error must be found.
In short, the record yields the distinct possibility that the jury convicted appellant without giving consideration to the more than incidental movement element of the offense. Reversible error must be found.
CONCLUSION
For the reasons stated above, the kidnapping for the purpose of rape conviction must be reversed.
Dated: April __, 2003
Respectfully submitted,
DALLAS SACHER
Attorney for Appellant,
JOHN DOE
